Tackling pregnancy complications of a different kind - Part 2: Parental leave and return to work

In Part 2 of our spotlight on pregnancy and parental related issues in the workplace, we discuss the different types of parental and related leave entitlements available to employees, the challenges of administering the provision of those entitlements, and various workplace issues that might arise while an employee is on parental leave or in relation to their return to work.

Revisit our previous article, Part 1: During pregnancy, to learn about how employers can effectively manage workplace issues that arise during an employee's pregnancy.

Working parents who become the primary carer of a newly adopted child are also afforded various statutory protections and rights (such as pre-adoption leave, unpaid parental leave and parental leave pay). While that is beyond the scope of this article, employers should take equal care in navigating their way through that regulatory minefield, and where necessary, seek legal advice.

PAID PARENTAL LEAVE

While proposals for the Federal Government's new paid parental leave scheme are yet to be finalised (see our earlier article), further details about those proposals have been unveiled. For example, proposals allowing eligible female employees to receive six of 26 weeks' parental leave pay, before their due date, are currently being considered.

The Federal Government is also proposing to use its constitutional powers to prevent employees from "double-dipping" by having access to both Government-funded parental leave payments under the Paid Parental Leave Act 2010 (Cth) (PPL Act) and paid parental leave entitlements provided by their employer. Presently, employees are able to access payments under the PPL Act in addition to any paid parental leave provided by their employer (for example, under a company policy or enterprise agreement).

Until the Federal Government's new scheme commences on 1 July 2015 (as proposed), the PPL Act continues to provide eligible female employees 18 weeks' parental leave pay, and eligible male employees two weeks' pay (known as Dad and Partner Pay – see our earlier article). This Government-funded payment is calculated based on the national minimum wage rate (which is currently $622.20 per week). In order to receive such payments, the employee must be a primary carer of a newborn (or recently adopted) child, meet various other eligibility criteria, and provide approval documentation to the Federal Government's Department of Human Resources.

TAKING LEAVE AFTER GIVING BIRTH

All employees in Australia are eligible for unpaid parental leave under the Fair Work Act 2009 (Cth) (FW Act) if they have completed at least 12 months of continuous service with their employer as at the date they take leave (not the date they fall pregnant). This includes casual employees, but only if they have been employed by the employer on a regular and systematic basis for a sequence of periods over at least 12 months, and but for the birth (or expected birth) of a child, they would have a reasonable expectation of continuing employment on a regular and systematic basis.

Importantly, unpaid parental leave is only available to employees who have or will have responsibility for the care of the child.

The decision of how much parental leave to take is a personal one for each employee to make. Not all employees will choose to take the maximum amount of unpaid parental leave available. In reality, working women in Australia only take about eight months of parental leave on average1.

Early discussions about the employee's handover process and return to work plan will assist the employer with managing staffing levels, planning for the recruitment of any replacement employee, and ensuring a smooth transition of responsibilities before the employee goes on parental leave.

Employers should note that the eligibility requirements for unpaid pre-adoption leave and unpaid "no safe job leave" are different however.

Entitlements for employees and employee couples

An "employee couple" is where two employees (not necessarily of the same employer) covered by the FW Act are in a spousal or de facto relationship.

For birth-related unpaid parental leave, the child must be that of the employee, the employee’s spouse, or the employee’s de facto partner.

The FW Act ensures that same sex de facto relationships are recognised for unpaid parental leave entitlements. This means that the same sex de facto partner of either a person who gives birth or a biological parent may be eligible to take birth-related unpaid parental leave.

Administering employees' entitlement to take unpaid parental leave can be challenging as employers must navigate through different rules that apply under the FW Act, depending on the individual circumstances of the employee taking leave, including whether only one member or both members of an employee couple intend on taking leave.

Where one employee (or only one member of an employee couple) takes unpaid parental leave:

the employee is entitled to take up to 12 months of unpaid parental leave, and may request a further period of up to 12 months from their employer

leave must be taken in a single continuous period, and

there are different rules about when leave must start, depending on whether or not the employee taking leave is giving birth to the child, or if the employee has a spouse or de facto partner who is not an employee and who will have responsibility for the care of the child.

Where both members of an employee couple take unpaid parental leave, the employees are entitled to no more than 24 months of leave between them, and their leave must generally be taken in a combined continuous period. Each member of an employee couple may take a separate period of up to 12 months of unpaid parental leave.

Both members of an employee couple may also take unpaid parental leave at the same time. However, there are additional rules about when concurrent leave may be taken, and the maximum length of concurrent leave that can be taken by an employee couple depends on whether leave is taken in a continuous period or separate periods.

The different rules about when parental leave must start (referred to above) also apply to each member of the employee couple.

What are the notice and evidence requirements for taking unpaid parental leave?

An employee is not entitled to take unpaid parental leave unless they:

give at least 10 written weeks' notice to their employer (unless it is not possible to do so), and specify the intended start and end dates of the leave, and

at least four weeks before the intended start date (specified in the notice), confirm the intended start and end dates, or advise the employer of any changes to those dates (unless it is not possible to do so).

Where concurrent unpaid parental leave is to be taken in separate periods, these notice requirements apply to the first period of that leave. For second and subsequent periods, the employee must provide the employer with four weeks' notice.

An employer may require evidence that would satisfy a reasonable person of the actual or expected date of birth of a child (e.g. a medical certificate).

Can an employee extend their unpaid parental leave?

An employee taking 12 months parental leave may request an extension of a further 12 months leave (up to 24 months in total), unless they are a member of an employee couple and the other member has already taken all or part of the 12 months of leave available to them (in which case the total period of leave cannot exceed 24 months).

The request must be in writing and be given to the employer at least four weeks before the end of the employee’s initial period of parental leave. The employer must respond in writing within 21 days, stating whether they grant or refuse the request. They may only refuse if there are reasonable business grounds to do so, and must detail their reasons in writing.

The FW Act does not define what will be "reasonable business grounds" for an employer refusing a request, but relevant factors may include:

the effect on the workplace (e.g. the impact on finances, efficiency, productivity and customer service)

It has also recently been announced (see our recent article) that the Government proposes to amend the FW Act to require an employer to give an employee a reasonable opportunity to discuss with them a request for extended unpaid parental leave before refusing any such request.

DURING PARENTAL LEAVE

Maintaining contact with employees

Bearing in mind that an employee's return to work plan may change over time, the FW Act recognises that it is important for an employer to maintain some level of communication with the employee while they are on parental leave.

Importantly, during the parental leave period, if the employer decides to make any change to its business or organisational structure which can have a significant impact on the employee's job (including the employee's status, pay or location of their pre-parental leave position), the employer is required to give the employee information about the effect of any such decisions on the employee’s position and to take all reasonable steps to discuss these potential changes with the employee.

In a legal action brought by the Fair Work Ombudsman against the operators of an aged care facility2,the employer reallocated an employee's shifts to other workers while the employee was on maternity leave and without consulting the employee. After returning to work from leave, the employee was offered a reduced number of shifts that were only sleepover shifts. When the employee informed the employer she could not work sleepover shifts because of her family responsibilities for her child, the employer treated that as her resignation from employment.

The Federal Court found that the employer's conduct amounted to constructive dismissal, that the employer had contravened the FW Act because of its failure to consult with the employee about changes to her shifts, and that the employer had subjected her to unlawful discrimination on the grounds of pregnancy and family responsibilities. The employer was fined a total of $30,888 and ordered to pay $5,000 compensation to the employee.

Keeping in touch days

The FW Act makes provision for keeping in touch days. A "keeping in touch day" is when an employee performs work for the employer on a day or part of a day while on approved unpaid parental leave. Such a day (or part of a day) will be considered a "keeping in touch day" if it meets certain criteria including:

the purpose of performing work is to enable the employee to keep in touch with their employment (and to assist the employee's return to work once their leave ends)

the day does not fall within a specified period from the date of birth

both parties consent to the employee performing work on that day, and

the employee has not already performed work on 10 keeping in touch days during the period of leave.

An employee who performs work on a keeping in touch day is entitled to payment from their employer in accordance with the relevant contract of employment or industrial instrument. Importantly, a keeping in touch day will not break the single continuous period for unpaid parental leave purposes.

RETURNING TO WORK AFTER PARENTAL LEAVE

Return to work guarantee

Employees, after having taken a period of parental leave, have a statutory entitlement under the FW Act to return to their previous position. If that position no longer exists, the employee is entitled to return to an available position for which the employee is qualified and suited, within the employee's qualifications, and which is nearest in status and pay to the employee's previous position.

Flexible working arrangements

Employees (including casual employees employed on a regular and systematic basis) returning to work after taking parental leave, who have completed at least 12 months' service, have the right to request flexible working arrangements from their employer under the FW Act. For example, eligible employees may request to work part-time, work some days from home, and/or change their start and finish times, in order to attend to their family responsibilities.

Employers can refuse such a request on "reasonable business grounds" (see our earlier article for relevant factors that may contribute to a "reasonable business ground"), and there is limited scope for employees to challenge their employer's refusal.

A request for flexible working arrangements is considered an exercise of a "workplace right" by an employee under the general protections provisions of the FW Act. For this reason, employers should be mindful of those provisions when handling such a request, and take care not to discriminate or take any "adverse action" against an employee returning from parental leave when managing their work arrangements.

FINAL WORDS

The Attorney-General’s Department has funded the Australian Human Rights Commission (Commission) to conduct a national review on the prevalence, nature and consequences of discrimination in the workplace related to pregnancy and family responsibilities (National Review). The Commission received over 300 submissions from employees, community organisations, employers, businesses and industry associations before public submissions closed on 31 January 20143.

The National Review team will publish a report in or around June 2014 based on their research findings and the submissions received. The report will identify leading practices and strategies for employers to support employees with parental responsibilities, and provide recommendations to address the forms of discrimination identified in the review.

As the National Review and the Government's proposed new paid parental leave scheme puts working parents (and carers) once again in the spotlight, it is particularly important that employers are fully across the complex rules that apply to parental and related leave entitlements so that the provision of those entitlements are correctly administered.

Further, open communication and careful planning together with an employee are again key to ensuring workplace issues, which arise while an employee is on parental leave or in relation to their return to work, are effectively managed.

If you require assistance in this area, please contact a member of our team.